A Bill for an Act to Amend the Migration Act 1958, and for Related Purposes

2013-2014-2015-2016

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Migration Amendment (Free the Children) Bill 2016

No.      , 2016

(Senator Hanson-Young)

A Bill for an Act to amend the Migration Act 1958, and for related purposes

Contents

1        Short title        1

2        Commencement        1

3        Objects        2

4        Schedules        3

Schedule 1—Amendments        4

Migration Act 1958        4

A Bill for an Act to amend the Migration Act 1958, and for related purposes

The Parliament of Australia enacts:

1  Short title

                This Act may be cited as the Migration Amendment (Free the Children) Act 2016.

2  Commencement

        (1)        Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:        This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

        (2)        Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Objects

                The objects of this Act are:

        (a)        to provide that children detained under the Migration Act 1958 must not be held in immigration detention facilities but instead be placed, along with their immediate family members or guardians, in community residential facilities; and

        (b)        to uphold Australia’s international obligations under the Convention on the Rights of the Child done at New York on 20 November 1989, particularly as they relate to:

        (i)        the primacy of the consideration of the child’s best interests (Article 3); and

        (ii)        the principle that children must only be detained as a measure of last resort and for the shortest appropriate time (Article 37).

Note:        In 2016, the Convention on the Rights of the Child could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

4  Schedules

                Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Migration Act 1958

1  Section 4AA

Repeal the section, substitute:

4AA  Principles protecting the rights of minors under this Act

        (1)        The principles set out in this section, drawn from Article 37 of the Convention on the Rights of the Child, must in every relevant case be applied by each person exercising a power or performing a function under this Act.

Note:        In 2016, the Convention on the Rights of the Child could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

        (2)        No minor is to be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a minor must be in conformity with the law and must only be used as a measure of last resort and for the shortest appropriate period of time.

        (3)        Every minor deprived of liberty must be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.

        (4)        Every minor deprived of his or her liberty has the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

2  Subsection 5(1)

Insert:

Convention on the Rights of the Child means the Convention on the Rights of the Child done at New York on 20 November 1989.

Note:        In 2016, the Convention on the Rights of the Child could be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

3  Subsection 5(1) (definition of residence determination)

Omit “subsection 197AB(1)”, substitute “subsections 197AAA(1), (2), (3) and 197AB(1)”.

4  After section 197AA

Insert:

197AAA  Minister must determine that minor is to reside at a specified place rather than being held in detention facility